Analysing the Laws And Procedures pertaining to Divorce in India

Abstract

Divorce grants legal rights to one partner to seek dissolution of marriage from the other. In earlier times, the absence of structured divorce laws led to various issues, such as defining valid grounds for divorce and ensuring consistency across different cases. Since divorce practices vary across religions, there has often been disparity and conflict, such as the ‘triple talaq’ system among Muslims, which has at times violated individuals’ rights. Therefore, enacting comprehensive legal standards for divorce is essential to address these issues fairly. Modern laws also grant women the right to initiate divorce, a right previously denied.

Introduction

Divorce, also called the ‘dissolution of marriage,’ terminates a marital union. Typically, divorce cancels or restructures the legal obligations and responsibilities within a marriage, resulting in the legal end of the marital bond between a couple as per the laws of a specific country or state. In India, the divorce laws vary by religion, with distinct regulations for inter-caste or interfaith marriages.

Different Divorce Laws in India by Religion:

1. Hindu (including Sikh, Jain, and Buddhist) Marriage Act, 1955
2. Dissolution of Muslim Marriages Act, 1939
3. Indian Divorce Act, 1869
4. Parsi Marriage and Divorce Act, 1936
5. Special Marriage Act, 1954

Grounds for Divorce:

1. Adultery
Adultery, defined as voluntary sexual intercourse with someone other than a spouse, is viewed as a serious violation. Previously, it was considered a punishable offense under Section 497 of the Indian Penal Code, 1860, which prescribed up to five years of imprisonment or a fine. However, in 2018, the Supreme Court declared Section 497 unconstitutional, decriminalizing adultery, but retaining it as a valid ground for divorce under Section 13(1) of the Hindu Marriage Act, 1955.

2. Cruelty
The Hindu Marriage Act, 1955, recognizes cruelty as a ground for divorce under Section 13(1)(i)(a). Cruelty can be physical, mental, or in any form of harassment. The court has established that proving intent to be cruel is not essential.

3. Desertion
Section 13(1)(b) of the Hindu Marriage Act, 1955, includes desertion as a ground for divorce. It involves one spouse abandoning the other without valid cause and renouncing marital responsibilities.

4. Conversion to Another Religion
Conversion to another religion is grounds for divorce, as stated in the Hindu Marriage Act, 1955.

5. Unsoundness of Mind
Mental illness can also justify divorce, as provided under the Hindu Marriage Act, 1955, and the Dissolution of Muslim Marriages Act, 1939.

Legislative Framework in India

1. The Hindu Marriage Act, 1955
This Act emerged from a campaign led by the All India Women’s Conference and other women’s associations in the 1930s to establish divorce rights for Hindu women. Sections 13 to 25 cover various divorce provisions, including:
– Section 13 – Grounds for Divorce: Either spouse may file for divorce based on specified grounds.
– Section 13A – Alternative Relief in Divorce Proceedings.
– Section 13B – Divorce by Mutual Consent: When both parties mutually agree to divorce, and no withdrawal of the petition occurs within six months (or later than 18 months), the court may issue a divorce decree.
– Section 14 – No Petition for Divorce Within One Year of Marriage.
– Section 15 – Remarriage of Divorced Persons.
– Section 17 – Punishment for Bigamy.
– Section 18 – Penalties for Contravening Hindu Marriage Conditions.
– Section 25 – Permanent Alimony and Maintenance.

2. The Dissolution of Muslim Marriage Act, 1939
In Islam, marriage can be dissolved by:
i) The death of either spouse, or
ii) Divorce.

Types of Divorce in Islam:
– Talaq-ul-Sunnat: A revocable form of talaq, allowing for reconciliation. It includes:
– Ahsan: A single pronouncement of talaq, revocable during the waiting period.
– Hasan: Three consecutive pronouncements in separate tuhrs (menstrual cycles), also revocable.
– Talaq-ul-Biddat: An irrevocable talaq, wherein the husband pronounces three divorces simultaneously. Practiced by some Sunnis, it is not supported by religious teachings.
– Illa: If a husband vows not to touch his wife and maintains this for four months, the marriage dissolves.
– Zihar: When a husband equates his wife with a maternal figure, the wife can seek divorce.
– Khula: Initiated by the wife, it requires mutual agreement for separation.
– Mubarat: Initiated by the husband, with mutual consent for separation.
– Lian: A judicial form of divorce if a husband accuses his wife of adultery without proof, allowing the wife to approach the court for divorce.

Grounds for Divorce under the Dissolution of Muslim Marriage Act, 1939 (Section 2):
– Husband’s absence for four years.
– Neglect in providing maintenance for two years.
– Imprisonment of the husband for seven or more years.
– Failure to perform marital obligations for three years.
– Husband’s impotence or prolonged insanity.

3. The Indian Divorce Act, 1869
Section 10 of this Act lays down the grounds for divorce among Christians:
– Adultery.
– Conversion to another religion.
– Unsoundness of mind for at least 10 years.
– A communicable disease within two years before filing.
– Absence of the spouse for seven years or more.
– Desertion of the petitioner for at least two years before the petition.
– Cruelty creating a reasonable apprehension that living together is harmful.

Section 10A – Mutual Consent Divorce: A petition can be presented if both parties have been living separately for two or more years and mutually consent to divorce. If not withdrawn within six months, the court can decree dissolution.

4. The Parsi Marriage and Divorce Act, 1936
This Act was India’s first codified matrimonial law and applies to Parsis. Sections 31 to 33 address divorce provisions, including:
– Section 31 – If a spouse is absent for seven years or more, the marriage can be dissolved.
– Section 32 – Grounds for divorce include non-consummation, unsoundness of mind, adultery, bigamy, grievous hurt, venereal disease, or a death sentence.

5. The Special Marriage Act, 1954
A re-enactment of the Special Marriage Act of 1872, Sections 27 to 30 cover divorce grounds under this Act, including:
– Voluntary extramarital relations.
– Desertion for two years or more.
– Imprisonment for seven years or more.
– Mental illness or venereal disease.
– Absence of the spouse for seven years or more.

Section 28 addresses divorce by mutual consent.

Divorce for Jews
There is no codified divorce law for Jews in India. Judicial interpretation serves as the primary source of legal guidelines for Jewish divorces.

Landmark Supreme Court Judgments in India

1. Dr. N.G. Dastane vs. Mrs. S. Dastane (1975)
This case primarily addressed cruelty and the issue of whether acts of sexual intercourse condone cruelty. The Supreme Court ruled that cruelty can be a ground for divorce under Section 13(1) of the Hindu Marriage Act, 1955. The court rejected the argument that the respondent was of unsound mind and found her guilty of cruelty, thus granting judicial separation.

2. Neelu Kohli vs. Naveen Kohli (2006)
In this case, the Supreme Court underscored “irretrievable breakdown of marriage” as a basis for divorce, even though it is not explicitly recognized in the Hindu Marriage Act, 1955. The court held that prolonged separation indicates a breakdown in marriage and that dissolution is preferable when reconciliation is impossible.

3. Amardeep Singh vs. Harveen Kaur (2017)
The court in this case considered the mandatory ‘cooling-off’ period for divorce by mutual consent under Section 13B(2) of the Hindu Marriage Act, 1955. It ruled that the six-month waiting period is advisory, not mandatory, and may be waived if the couple has been separated for over a year before filing, with reconciliation attempts exhausted.

Case Laws Under Muslim Marriage

1. Itwari vs. Asghari and Ors
This case examined whether a husband’s second marriage constitutes cruelty under Muslim law, which allows polygamy. The Allahabad High Court held that a second marriage by the husband amounts to cruelty, disallowing conjugal rights against the wife’s will and mandating maintenance.

2. Shayara Bano vs. Union of India
This landmark case saw the Supreme Court declare the ‘instant triple talaq’ (talaq-e-bid’ah) unconstitutional, as it infringes on women’s rights and is not an essential Islamic practice. The judgment marked progress toward gender equality and legal reforms in family law.

Case Laws on Christian Marriage

1. Molly Joseph vs. George Sebastian (1966)
The Supreme Court ruled that an annulment decree from the church does not dissolve a marriage in the eyes of civil law. A civil divorce is necessary for either party to remarry.

Conclusion

In earlier times, patriarchal norms denied women divorce rights and upheld marriage as a sacred and unbreakable bond. The lack of rights left women with no means to escape oppressive marriages, particularly in Hindu traditions. In Muslim law, the ‘triple talaq’ system also infringed upon women’s rights, giving men unilateral divorce power. However, through legislative reform, including the Hindu Marriage Act, 1955, and the abolishment of ‘triple talaq,’ women now possess divorce rights. Enforcing fair and equitable divorce laws ensures that individuals’ rights are protected, reducing grievances and promoting satisfaction with judicial outcomes.